Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-2439 _____________________________ N. HANNOUSH JEWELERS, INC. and MASSACHUSETTS BAY INS. c/o HANOVER INS. GROUP, Appellants/Cross-Appellees, v. PATRICK BLY, Appellee/Cross-Appellant. _____________________________ On appeal from an order of the Office of the Judges of Compensation Claims. Jack Adam Weiss, Judge. Date of Accident: October 11, 2019. June 30, 2021 PER CURIAM. In this workers’ compensation appeal, both parties challenge the order of the Judge of Compensation Claims (JCC) in which he granted Claimant’s request for a one-time change of physician of his choice pursuant to section 440.13(2)(f), Florida Statutes, and awarded temporary partial disability (TPD) benefits “subject to the payment of unemployment benefits,” together with associated attorney’s fees and costs. We affirm the order in its entirety and write only to address the effect of Claimant’s receipt of unemployment compensation benefits on the amount of the TPD award. When Claimant filed a petition for benefits (PFB) seeking TPD benefits from the date of accident (October 11, 2019) and continuing, the E/C filed a response denying the request but also asked Claimant to fill out “Employee Earnings Report” (DWC-19) forms in order to report any earnings he was receiving during the periods for which he was claiming TPD benefits. Claimant reported on these forms that he began receiving unemployment compensation benefits on November 2, 2019. The E/C then asserted, not only that no TPD benefits were due, but alternatively that Claimant’s unemployment compensation benefits “ha[d] to be offset,” asking the JCC “that it be credited” to them to result in a smaller amount of liability. Claimant, in turn, asserted that any offset argument is an affirmative defense which must be specifically pled in accordance with procedural rules, and that by not pleading the defense in the pretrial stipulation the E/C had waived it. See Fla. Admin. Code R. 60Q-6.113(2)(h). In the final order, the JCC awarded TPD benefits from October 29, 2019, to November 8, 2019, less the amount of unemployment compensation benefits Claimant had received during that period, reasoning that unemployment compensation benefits are primary under section 440.15(10)(b), * Florida Statutes (2019): If an employee is entitled to temporary partial benefits pursuant to subsection (4) and reemployment assistance or unemployment compensation benefits, such reemployment assistance or unemployment compensation benefits shall be primary and the temporary partial benefits shall be supplemental only, * Subsection (10) was numbered as subsection (11) prior to 1982, and then again from January 1, 1994, to October 1, 2003. See Ch. 82-237, s. 1-3, Laws of Fla.; Ch. 93-415, s. 20, 112, Laws of Fla.; Ch. 03-412, s. 18, 50, Laws of Fla. 2 the sum of the two benefits not to exceed the amount of temporary partial benefits which would otherwise be payable. When Claimant moved for rehearing, he reiterated his position that the E/C had failed to preserve its argument on the effect of the unemployment compensation benefit payments on Claimant’s entitlement to TPD benefits. The E/C countered that they had preserved the issue by including the sentence “Claimant has subsequent employment and earnings” in their defenses on the pretrial stipulation. The JCC found the argument preserved but expressly ruled that the effect of Claimant’s receipt of unemployment compensation benefits on TPD benefits “is not an offset.” On cross-appeal, Claimant is challenging, not the period of time for the award, but the amount; he argues again that any “offset” of unemployment compensation benefits is improper because the E/C did not assert entitlement to an offset for the unemployment compensation benefit payments as an affirmative defense in the pretrial stipulation. We disagree with the premise that a Claimant’s receipt of unemployment compensation benefits results in an offset, and therefore we disagree that the E/C’s argument below was an affirmative defense necessitating additional pleading requirements. Although this Court has held that an E/C must plead entitlement to an offset for certain benefits payments as an affirmative defense, see Medina v. Miami Dade Cnty., 300 So. 3d 255 (Fla. 1st DCA 2020) (discussing an E/C’s offset for payment of wages in lieu of benefits), we agree with the JCC that a claimant’s receipt of unemployment compensation benefits does not result in an offset. An offset is a reduction in an amount of worker’s compensation benefits the E/C must pay, a credit against the E/C’s liability for such; for example, workers’ compensation benefits “shall be reduced” when an injured worker becomes eligible for Social Security benefits if the sum of the total payable benefits would “exceed 80 percent of the employee’s average weekly wage” (unless it would reduce benefits beyond what 42 U.S.C. s. 424(a) would have done). See § 440.15(9)(a), Fla. Stat. (2019) (creating reverse offset). 3 But a claimant’s receipt of unemployment compensation benefits does not “reduce” a claimant’s entitlement to TPD benefits. See § 440.15(10)(b), Fla. Stat. (2019). Rather, a claimant’s entitlement to TPD benefits is “supplemental” to any unemployment compensation benefits the claimant receives, which are “primary.” See id. Thus, when a claimant’s unemployment compensation benefits payments exceed what would otherwise be that claimant’s full amount of TPD benefits (up to 66 2/3 percent of that claimant’s average weekly wage, but for the unemployment compensation), the claimant has no entitlement to TPD benefits. See id.; see also § 440.15(4)(a), Fla. Stat. (2019). And thus a claimant’s unemployment compensation benefits are not “offset” against any TPD benefits to which the claimant is entitled. Even so, we acknowledge that this Court has twice suggested that unemployment compensation benefits paid to a Claimant should be “offset” against TPD benefits payable to the Claimant, see Nat’l Advertising/3M v. Wise, 590 So. 2d 1028, 1029 (Fla. 1st DCA 1991) (finding JCC miscalculated “offset” under § 440.15(10)(b)), and Ocean Manor Resort Hotel v. Garbalosa, 512 So. 2d 256, 257 (Fla. 1st DCA 1987) (reversing deputy commissioner’s failure to order “offset” for unemployment compensation). But the use of that nomenclature in both decisions is dictum because that (mis)characterization was not part of the ratio decidendi in either case and, did not alter the plain meaning of the statute. We find no error in the JCC’s ruling that unemployment compensation benefits paid to a Claimant do not result in an “offset.” AFFIRMED. LEWIS, ROWE, and WINOKUR, JJ., concur. 4 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Scott A. Beatty and David H. Roos of Henderson Franklin Starnes & Holt, P.A., Naples, for Appellants/Cross-Appellees. Michael J. Winer of Winer Law Group, P.A., Tampa, and Brian O. Sutter and Bryan R. Greenberg of All Injuries Law Firm, P.A., Port Charlotte, for Appellee/Cross-Appellant. 5